FEDERAL COURT OF AUSTRALIA

BJI18 v Minister for Home Affairs [2019] FCA 266

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (FCC) on 2 August 2018: BJI18 v Minister for Immigration and Border Protection [2018] FCCA 2108.

2    The FCC dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 21 February 2018. To have succeeded before the FCC, the appellant had to establish jurisdictional error on the part of the IAA.

3    The IAA had affirmed a decision of a delegate of the first respondent dated 19 April 2017. That delegate’s decision was one made under s 65 of the Migration Act 1958 (Cth) not to grant the appellant a Safe Haven Enterprise Visa.

BACKGROUND

4    The appellant arrived in Australia on 10 September 2012 as an unauthorised maritime arrival. He was a “fast track applicant” within the meaning of s 5(1) of the Act. The delegate’s decision was a “fast track reviewable decision” to which Part 7AA of the Act applied.

5    The appellant claimed to fear harm on return to Sri Lanka because of his Hindu religion, his Tamil ethnicity, his imputed political opinion as a suspected sympathiser or supporter of the LTTE and as a failed asylum-seeker or involuntary returnee.

6    The appellant’s claims are summarised in various places, including the delegate’s decision record and the IAA’s statement of decision. In summary, the appellant claimed that in 2009 the owner of a shop in which he worked went missing. The appellant was repeatedly questioned by the Sri Lankan Army (SLA) about the owner and the whereabouts of the LTTE and told to stay at home on Saturdays. The appellant claimed he was questioned because of the interest of the SLA in the owner. The appellant did not know whether the owner was in fact connected with the LTTE. The appellant claimed that he would be suspected of having links to the LTTE because he had left the area without the SLA’s permission. He claimed the military and the CID would harm him. His father (who was also questioned by the authorities) had been questioned about the appellant’s whereabouts a short period after the appellant left for Australia.

7    In a written statement provided to the IAA, the appellant claimed that he would be detained at the airport as a failed asylum seeker and involuntary returnee on his return and imprisoned for breach of Sri Lankan immigration law. He claimed that he would face degrading and inhuman treatment in prison and that he would be targeted and harmed by Sri Lankan officials because of his perceived links to the LTTE based on his ethnicity. He claimed to fear “attack, torture and even sexual assault in the prison in Sri Lanka”. Some of the country information relied on by the appellant noted “sexual and gender-based violence committed by police and security forces” in Sri Lanka.

LEAVE TO RELY ON NEW GROUNDS

8    The appellant’s application for judicial review was filed in the FCC on 21 March 2018. At that stage, the appellant was legally represented. He relied on two grounds of review. The appellant filed written submissions dated 17 July 2018, identifying two further grounds of review. By this stage he was unrepresented. The primary judge ordered that the two new grounds in the form of an amended application tendered in court be incorporated into the application for judicial review as grounds 3 and 4.

9    The grounds of review as ultimately before the FCC were (omitting some of the particulars):

1.    The IAA failed to consider relevant consideration and/or failed to engage in genuine and realistic consideration of the applicant’s claims

Particulars

The IAA failed to consider the applicant claim of sexual violence … The IAA failed to consider this integer claim and therefore, committed a legal error.

2.    The IAA failed to provide adequate procedural fairness to the applicant.

Particulars

The IAA considered a claim which was not considered by the Department of Home Affairs and therefore, the IAA failed to advise the applicant that it is an issue or concern before forming its own view …

There is no evidence in the decision to suggest that the Department of Home Affairs discussed with the applicant or in its decision whether the applicant or his relatives have the means to provide financial guarantee for him.

3.    IAA made a jurisdictional error by making an important finding

Particulars

IAA did conclude that I as suspected of LTTE connection because of my boss R. IAA did not make a finding that I was targeted for LTTE connection

4.    IAA made a jurisdictional error by not considering that threats made to me were serious.

Particulars

I faced threats from the CID they were investigating and threatening me. I feared that at some stage I will be killed.

IAA did not decide that I was a refugee.

10    The notice of appeal dated 23 August 2018, engaging the appellate jurisdiction of this Court contained seven grounds of appeal. Grounds 2, 3, 4, 6 and 7 were not argued before the primary judge. Grounds 1 and 5 were only partially argued below. The Minister submitted, correctly, that the case on appeal was substantially, if not entirely, new.

11    The principles relevant to whether leave should be granted are set out in numerous authorities. In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, the Full Court stated at [46] to [48]:

[46]    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

12    Ultimately, the question is resolved by determining what the interests of justice demand in the particular circumstances: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [32].

13    The Minister opposed leave being granted contending in particular that the new grounds of appeal lacked sufficient merit to warrant a grant of leave in the circumstances just identified.

the authority’s decision

14    The IAA accepted that the appellant was a Hindu Tamil and that he had been questioned by the SLA and the CID and that his former employer had disappeared. However, it stated that it had serious concerns about the appellant’s credibility and truthfulness and found that he had exaggerated his claims in respect of harassment from the SLA and the CID. The IAA did not accept that there was a real risk of harm on the basis of any imputed political opinion.

15    The IAA found that, given the absence of previous instances of discrimination against the appellant or ongoing instances of discrimination against his family, together with the improved situation for Tamils in Sri Lanka, the risk of harm on the basis of this ethnicity was remote.

16    The IAA noted that the appellant did not claim that he had experienced harm in the past on account of his religion or that his family had experienced such harm. Country information suggested that there were no reports of government supported anti-religious activities. The IAA was not satisfied that the appellant faced a serious risk of harm on that basis.

17    The IAA accepted that the appellant may be identified as a returning asylum seeker who had left Sri Lanka illegally. The IAA noted that country information suggested that custodial sentences were not imposed on returnees who were merely passengers on people-smuggling boats. Returnees faced fines, imposed as a deterrent. The IAA found that the appellant “may be detained and questioned at the airport for up to 24 hours, faces a fine for breaching the Immigrants and Emigrants Act 1948 (Sri Lanka) and, depending on the availability of a Magistrate at the time he is charged under the Act, and/or if a relative is required to guarantee and bail surety, may face a short period of being held in prison”: A[69].

the federal circuit court’s reasons

18    As to the first ground, the primary judge noted that the IAA accepted that there were credible reports of torture, rape and sexual abuse by the security forces and that torture was common practice by the CID in relation to criminal investigations, referring to A[43] and [45]. The primary judge recorded, however, that the IAA did not accept that the appellant was at risk (in the sense of being exposed to a real chance of harm) by reason of his Tamil origins or because of any imputed LTTE association, referring to A[33] to [42] and A[46] to [51]. The IAA addressed the matters raised by the appellant in relation to the risk of sexual violence but was not satisfied that there was such a risk.

19    The primary judge also observed that the IAA did not accept that the appellant faced imprisonment for any more than a few days while waiting for a court appearance and that such a brief period of detention would not constitute detention of a type or extent such as to expose the appellant to the level of threat or harm he had claimed: J[16]. The primary judge concluded:

17.    The IAA dealt with the issue of sexual violence properly, considering such claim in the context of the broader propositions of detention advanced by the applicant. In those circumstances, ground 1 has not been established and is dismissed.

20    The primary judge also dismissed Ground 2, which involved the assertion that the appellant was not afforded procedural fairness. His Honour recorded that the appellant “claimed that there was no evidence in the decision of the department to suggest that the Department of Home Affairs discussed with the applicant, or made reference in its decision, as to whether the applicant or his relatives had the means to provide a financial guarantee for him”: J[19].

21    His Honour noted at J[27] that the IAA must act reasonably when carrying out a review pursuant to s 473CC of the Act. The primary judge referred to country information concerning the treatment of illegal returnees and bail, which had been relied on by the IAA, and which had been sent to the appellant: J[28] to [31]. That country information referred to the question of granting bail and the use of personal or family surety. His Honour concluded at [32] to [24]:

32.    I accept the submission made on behalf of the first respondent that insofar as the IAA made findings in relation to the matters raised in ground 2 of the application for review, the authority properly addressed all questions and issues in that regard.

33.    Additionally, it was noted in the reasons of the IAA that the delegate had access to the relevant country information last referred to, and that the question of bail had been considered. The IAA acted appropriately in that regard.

34.    Additionally, the issue of bail was not a crucial link in the IAAs chain of reasoning in circumstances where the IAA made an alternative finding that the relevant Sri Lankan legislation relating to detention upon return to that country was a law of general application. In all of the circumstances, therefore, the applicant has not made out ground 2 and such ground is dismissed.

22    As to ground 3, the primary judge recorded that the IAA had accepted that the appellant had worked for his former employer (referred to in the IAA’s reasons as ‘R’) and had been questioned by the SLA and the CID but that it had rejected other aspects of the appellant’s evidence which it did not find credible: J[36]. His Honour concluded:

37.    By reason of such findings, as well as its acceptance of the country information referred to earlier relating to detention upon return, the IAA rejected the applicant’s claims that he would suffer harm in respect of any imputed association with the LTT[E]. Those findings were open to the IAA, and there has been no jurisdictional error demonstrated in relation to its treatment of them. It is, therefore, a ground which has not been made out and ground 3 is dismissed.

23    His Honour concluded that ground 4 fell into the same category as ground 3 “in terms of the claims that the applicant will be threatened and otherwise harmed if he were to be returned to Sri Lanka”. His Honour rejected this ground on the same basis as he rejected ground 3.

the appeal

24    As noted, there were 7 grounds of appeal.

Grounds 1 and 3:

25    Grounds 1 and 3 were:

1.    The Federal Circuit Court Judge Eagan [sic] failed to hold the Immigration Assessment Authority (IAA) (hereinafter referred as "the Authority" committed jurisdictional error as it failed to consider the integers of the claims in seeking protection of the applicant.

Particulars

a)    The applicant’s claims were contained at [para 16] of the Authority's decision. The Authority did not adequately consider the DFAT Country Information Report Sri Lanka dated 24 January 2017 or any other independent country information of Sri Lanka in assessing the applicant’s claims for protection as the applicant had raised claims of harm by reference to his past experiences leading to a future risk of harm to him if he were to return to Sri Lanka before the delegate.

b)    The Authority said “In assessing the applicant's evidence I have taken into account the difficulties of recall over time, the scope of misunderstanding in interpreted material, cross cultural communication issues, and the problems people who have lived through trauma may experience in presenting their story in a cohesive narrative at [para 26] of its decision.

c)    The Authority also said “I accept, on my findings that the applicant was questioned by the CID and SLA on up to 20 occasion between May 2009 and August 2012” at [para 47].

d)    In any event failure by the Authority to adequately consider the Country Information Sri Lanka dated 24 January 2017 of the Department of Foreign Affairs and Trade (DFAT) in order to access the applicant’s claims also under complementary protection was a jurisdictional error.

e)    The Authority concluded “The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a) at [para 76] of its decision.

…

3.    The Authority had failed to consider the information 24 January 2017 of the Department of Foreign Affairs and Trade (DFAT) adequately in order to assess the applicant’s claims in the background of the political situation in Sri Lanka, the security situation in Sri Lanka, incidence of extra-judicial killings, disappearances and abduction for ransom, torture, and prisons conditions that are of general application to Tamil people in Sri Lanka. The Federal Circuit Court Judge Egan would have held that was a jurisdictional error.

Particulars

a)    This information was crucial before making a decision by the Authority on the applicant’s claims of a well-founded fear of persecution in seeking protection in Australia.

b)    These circumstances constituted a constructive failure to exercise its jurisdiction before it made a decision which was a jurisdictional error.

26    Underlying both of these grounds is a complaint that the IAA failed sufficiently or adequately to consider country information in the DFAT Report dated 24 January 2017 (DFAT Report 2017). It is possible that the complaint was that the IAA failed sufficiently or adequately to consider all of the country information before it. Neither of these complaints is made out. There were numerous references in the IAA’s decision to country information, including the DFAT Report 2017. The IAA’s statement of decision shows that it carried out the review entrusted to it in considering the country information before it. For present purposes, it is sufficient to set out the following paragraphs from the IAA’s decision (footnotes omitted):

36.    DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are no current laws or policies that discriminate on the basis of ethnicity including in relation to access to education, employment or access to housing. DFAT states that Tamil inclusion in the political dialogue in Sri Lanka has increased under the Sirisena government and they have a substantial level of political influence.

…

38.    DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena government; the police are now responsible for civil affairs across Sri Lanka; although there is still a sizable military presence in the north and east, it is largely idle and generally restricted to their barracks; and members of the Tamil community have described a positive shift in the nature of interactions with the authorities and they feel able to question the motives of, or object to, monitoring or observation activities.

39.    DFAT assesses that some societal discrimination on the basis of ethnicity can occur but does not identify any such specific issues in relation to Tamils. DFAT notes that monolingual Tamil speakers can have difficulties communicating with the police, military and other government officials but assesses that these practical difficulties are as a result of a lack of qualified language teachers, the disruption of civilian life caused by the war and historical discriminatory language policies rather than official discrimination.

…

46.    DFAT assesses the number of incidents of extra-judicial killings, disappearances and kidnappings for ransom, including incidents of violence involving former LTTE members, as significantly reduced since the end of the war. There are credible reports of torture carried out by the security forces during the war and its immediate aftermath although DFAT states that Tamils faced a higher risk of torture during the war. DFAT is aware of reports of torture carried out by the police including from the UN Special Rapporteur and the HRC but assesses that torture in Sri Lanka, whether perpetrated by the military, intelligence or police forces, is not presently systemic or state sponsored and that the risk of torture from military and intelligence forces has decreased since the end of the war. DFAT states that as few reports of torture are proved or disproved it is difficult to determine the prevalence of torture. However, it considers that Sri Lankans face a low risk of mistreatment that can amount to torture, mostly perpetrated by the police, irrespective of their religion, ethnicity, geographical location or other identity; that the incidence of torture has reduced in recent years; and that the allegations of torture pertain to a relatively small number of cases compared to the total population.

Those paragraphs do not constitute the entirety of the IAA’s consideration of the DFAT Report 2017 or the country information more generally, however they are sufficient to show a careful discharge of the function of review entrusted to the IAA.

27    The appellant did not identify any specific matter or issue not considered in relation to the country information. The question of what country information to prefer and what weight to give country information is a matter for the IAA: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] (Gray, Tamberlin and Lander JJ); VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [26], [32] (Beaumont, Weinberg and Crennan JJ); VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63] (Lander J; Gray and Kiefel JJ agreeing). That does not mean that conclusions based on country information are immune from judicial review. For example, the manner in which the IAA dealt with country information might be shown to be sufficiently unreasonable or irrational as to constitute or reveal jurisdictional error. By way of further example, the IAA may have misunderstood or ignored country information of such central importance to the claims made that it might be said it did not carry out the review contemplated by Part 7AA of the Act.

28    In the present case, however, the IAA clearly engaged with the country information adequately. It follows that grounds 1 and 3 cannot succeed.

Ground 2:

29    Ground 2 was:

2.    The applicant contends that the failure to exercise the power, or to consider whether or not to exercise the power, in s 473DC(3) to put the applicant on notice that, in contrast to the delegate’s decision, his credibility concerning some of his claims was in issue, was unreasonable such that the Authority committed a jurisdictional error.

Particulars

a)    In Minister v Li (2013) 249 CLR 332 at [29], [47] and [63] that the High Court stated:

“When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably”.

b)    In OZU16 v Minister [2017] FCCA 851 at [116]-[124] Judge Driver applied this principle to s 473DC.

c)    The reviewer Mark Oakman failed to research and take into consideration of the significant judgements in the cases BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 by White J; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; and CHF16 & Anor v Minister Immigration and Border Protection & Anor [2017] FCAFC 192 in making a decision for the applicant under review.

30    In its terms, this ground is to the effect that the IAA ought to have exercised the power under s 473DC(3) (or considered exercising it) by putting the appellant on notice that it had concerns, which might be different from the concerns of the delegate, with respect to the appellant’s credibility in relation to some of his claims. The appellant did not identify any specific matter in respect of which he contended the IAA ought to have considered exercising the power under s 473DC(3) other than in the general way just identified.

31    Division 3 of Pt 7AA of the Act, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA: s 473DA(1). Section 473DA provides:

(1)      This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)      To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

32    Section 473DC(1) gives the IAA a discretion to “get any documents or information (new information)” that were not before the Minister when the decision was made and which the IAA considers relevant. Section 473DC(3), which does not limit s 473DC(1), gives the IAA a discretion to “invite a person … to give new information” in writing or at an interview. Section 473DC provides:

(1)      Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)      were not before the Minister when the Minister made the decision under section 65; and

   (b)      the Authority considers may be relevant.

(2)      The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)      Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)      in writing; or

(b)      at an interview, whether conducted in person, by telephone or in any other way.

33    The Full Court of this Court has held that there may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC(3): Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [80], [81].

34    There is a distinction to be drawn between an unreasonable exercise of a discretion and an unreasonable failure to consider exercising a discretion.

35    The first question which arises where it is contended that there was a failure to consider exercising a discretionary power, is whether the appellant has discharged the onus of establishing the factual foundation for the conclusion that there was such a failure: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38].

36    In the present case, I will proceed upon the basis that the IAA did not consider exercising the discretion in s 473DC(3) so as to indicate to the appellant that it might reach different conclusions with respect to credibility to those reached by the delegate and invite him to give new information in that regard.

37    The second question, when the contention is that there was a failure to consider exercising the power in s 473DC(3), is whether the appellant has discharged the onus of establishing that the failure was affected by jurisdictional error, the error in this case being said to be constituted by legal unreasonableness: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J); CCQ17 at [38].

38    As to the second question – here, determining whether an established failure to consider exercising a discretionary power has been shown by the appellant to be legally unreasonable – it is necessary to:

(1)    identify the failure with precision – in the present case, that includes identification of the precise subject matter of the invitation which it is contended the IAA ought to have considered making under s 473DC(3);

(2)    examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and

(3)    evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

39    The third matter is drawn from the principles referred to in the context of the making of an administrative decision (as opposed to the exercise of a discretion involved in the decision making process) in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ). Allsop CJ explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

40    The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme: CRY16 at [67]; DZU16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. Section 473DC(2) provides that the IAA “does not have a duty to get, request or accept, any new information” whether requested to do so or in any other circumstance. The Full Court in CRY16 has necessarily concluded that s 473DC(2) does not prevent an implication from the terms of the statute that a failure to consider whether to exercise the discretion in s 473DC(3) can be legally unreasonable (as opposed to the implication that its exercise must be reasonable) – see: DOP17 v Minister for Immigration and Border Protection [2019] FCA 129 at [28] (Steward J). Nevertheless, the subsection remains relevant, as part of the scope and purpose of the statutory source of power, to the evaluative exercise called for by the principles articulated in Stretton (referred to above) and in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11]-[13] (Kiefel CJ); at [88]-[90] (Nettle and Gordon JJ).

41    Answering the appellant’s case at the level of generality with which it was put, the IAA was permitted to depart from the findings of the delegate without notifying or forewarning the appellant. This is inherent in the statutory scheme. Part 7AA establishes a scheme which is different to that established by Part 7 in several important respects. Part 7AA does not, for example, contain any provision equivalent to s 424A or s 425 which are elements of the statutory scheme in Part 7. The decision in SZBEL v Minister for Immigration (2006) 228 CLR 152 turned on the words of s 425, namely that the Tribunal was to invite the applicant for review “to give evidence and present arguments relating to the issues arising in relation to the decision under review”: at [33]-[34] (emphasis in original). Part 7AA proceeds from a default position that there will not be a hearing and the review will be conducted on the papers: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [22] (Gageler, Keane and Nettle JJ).

42    There is no general obligation created by the statutory scheme in Part 7AA to put a fast track applicant on notice that the IAA might reach different conclusions to those reached by the delegate. It may be that the particular circumstances of a case are such that a failure to exercise or consider exercising the discretion under s 473DC(3) gives rise to jurisdictional error, but it does not arise at the level of generality with which it was put.

43    In DGZ17 the Full Court observed at [72]:

… Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. …

44    The Full Court said at [74]:

We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

45    At [75] the Full Court also referred to the lack of an equivalent to s 425 in Part 7AA.

46    At [76] the Full Court stated:

It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

47    CRY16 and DZU16 involved very particular situations. In CRY16 at [82] the Full Court concluded that the failure in that case had the consequence that the IAA “disabled itself” from exercising the function entrusted to it. As the Minister submitted, a critical dimension to the reasoning of the Full Court in both CRY16 and DZU16 was that the particular circumstances meant that the failure to consider the exercise of discretionary powers had the consequence that the IAA could not engage in, or fully engage in, the statutory task of review.

48    Descending into further detail of the credibility findings, the delegate set out her credibility concerns extensively in several places: AB 198, AB 200-202. The IAA also set out its concerns in relation to credibility, see, in particular A[26] to [29].

49    Whilst it might be said that the credibility conclusions of the delegate and the IAA were not identical, they were substantially similar. It cannot be said that there is anything in the circumstances of this case which required the IAA to consider exercising the discretion in section 473DC(3). Accordingly, the second ground of appeal must fail.

Grounds 4 and 5:

50    Grounds 4 and 5 were:

4.    The Federal Circuit Court Judge Eagan [sic] failed to hold that the Authority erred in relations to the making of findings as to credit/credibility.

Particulars

a)    McHugh J said in a 2000 High Court judgment, “... a finding on credibility ... is the function of the primary decision maker ‘par excellence”’ (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]. However, if such a finding was, for example, not based on any evidence (i.e. “any evident or intelligible justification” see Minister for Immigration and Citizenship v Li [2013] HCA 18 at 76; (2013) 249 CLR 332) or threr [sic] was a failure to rationally consider the available evidence (see Faustin Epeabaka v Minister for Immigration & Multicultural Affairs [1997] FCA 1413; Minister for

b)    More recent judgments have been at pains to point out that there are circumstances where findings as to credibility by administrative decision-makers may found jurisdictional error See also: Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [47], SZSQY v Minister for Immigration and Border Protection [2013] FCA 1288 at [16] and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51.

c)    The Federal Circuit Court Judge Eagan [sic] failed to review the component parts of the process by the Authority that lead up to the finding from the perspective of legal reasonableness and would have held it was a jurisdictional error.

5.    The Federal Circuit Court Judge Eagan [sic] failed to hold that the Authority denied the applicant procedural fairness.

Particulars

a)    The Authority’s decision was based on the rejection of the evidence of the applicant, and that decision was based on an assessment as to whether the applicant was to be believed or not, then the failure to give reasons for that finding was a jurisdictional error (See Li [2013] HCA 18 at 76, and Sullivan v Civil Aviation Safety Authority [2014] FCAF 93 at [97].

b)    As the decision of the Authority was detrimental to the applicant's rights or interests and a significant basis for that decision was a finding about credibility, a failure to disclose to the applicant of the affected material on which such a finding was based was a denial of procedural fairness (See for example Nichols v Singleton Council (No 2) [2011] NSWSC 1517.

51    Ground 4 asserts jurisdictional error in respect of credibility findings and ground 5 asserts a denial of procedural fairness. The particulars to ground 5, however, make it clear that it is directed to the IAA’s conclusions with respect to credibility.

52    To the extent that ground 5 is based on procedural fairness, it is necessary to appreciate that the statutory regime created by Part 7AA affects what procedural fairness requires. Part 7AA modifies the natural justice hearing rule by restricting its operation. This is exemplified by the fact that the scheme involves a default position of there being no entitlement to a hearing, and for the review to be conducted, ordinarily, on the papers: ss 473BA and 473DB of the Act. The scheme does not eliminate procedural fairness. Section 473DE furnishes an example of a situation in which the Tribunal must afford a referred applicant an opportunity to comment.

53    There is no question that a decision-maker may err in a way which goes to jurisdiction in respect of credibility findings. In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, the Full Court (McKerracher, Griffiths and Rangiah JJ) said at [36]-[38]:

36.    Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted) (emphasis added):

67.    In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

68.    But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:

“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.”

    The prosecutor argued at the hearing that s 430(1)(c) "feeds into the ascertainment of the Minister’s satisfaction" and that it is "an integral part of ascertaining the jurisdictional fact".

37.    It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

38.    There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a)    failure to afford procedural fairness;

(b)    reaching a finding without any logical or probative basis;

(c)    unreasonableness; and/or

(d)     jurisdictional error as discussed by Flick J in SZVAP

54    In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] (citations omitted), the Full Court of this Court (Kenny, Kerr and Perry JJ) stated at [30]:

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. In each case it is necessary to analyse in detail what the decision-maker has decided.

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. …

55    As the passage just set out makes clear, it is necessary to identify the exact nature of the decision-maker’s failure and why it constitutes an error. In the present case, the credibility findings of the IAA had a logical basis. The Minister correctly submitted that the IAA identified the matters of evidence, discrepancies, inconsistencies and omissions that formed the basis of its conclusions, particularly at A[26] to [29]. Ground 4 is not made out.

56    The contention in ground 5 that there was a breach of procedural fairness in failing to disclose matters to the appellant is not made out because there was no obligation on the IAA to do so in the circumstances of this case for the reasons also traversed in relation to ground 2.

Ground 6:

57    Ground 6 was:

6.    In Minister v Rajalingam (1999) 93 FCR 220 Sackville J states at [60], [62], [63] and [67]:

[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. [63] ... In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute: an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".

a)    The delegate was obliged to take into account the possibility that the applicant was imputed as an LTTE supporter or as a person with LTTE links before he left Sri Lanka. If the delegate had taken this possibility into account, it may have affected the delegate’s assessment of whether the applicant faces a real chance of persecution on his return to Sri Lanka.

b)    The applicant stated that the harm he would face if he were to return to Sri Lanka is due to the essential and significant reasons of his real or imputed political opinion as supporter of LTTE having lived in the LTTE controlled area and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]. The Federal Circuit Court Judge Driver would have held that the IAA failed to consider this which was a jurisdictional error.

58    Ground 6 turns on the application of the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. A Full Court of this Court (Keane CJ, Perram and Yates JJ) referred to Rajalingam with apparent approval in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; 117 ALD 441 at [94] and [95]:

94.    The requirement that a fear of persecution be “well-founded” adds an objective element to the requirement that an applicant actually have a fear of persecution. In order to demonstrate a well-founded fear of persecution it is sufficient that there is a “real chance” that the applicant might be persecuted for a Convention reason: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. This requires a decision-maker to engage in a degree of speculation about future events. The fact of past persecution is relevant to the determination of possible future persecution.

95.    In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:

(a)    There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.

(b)    In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.

(c)    Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.

(d)    There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.

(e)    Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to “impute” to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded. To do so would be to engage in merits review.

(f)    In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

59    The first step in the inquiry is to determine whether the IAA in fact had a real doubt about its conclusion with respect to the relevant events. In this regard:

(1)    the IAA’s reasons should be read in a practical common-sense manner and not be construed minutely with an eye keenly attuned to the perception of error: Wu Shan Liang (1996) 185 CLR 259 at 271-2; Rajalingam at [67]; MZXSA at [96];

(2)    there is no reason in principle that a decision-maker must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct: Rajalingam at [64]; MZXSA at [95(d)].

60    If the IAA did not have any real doubt in relation to the relevant findings, then no occasion arises to consider whether the IAA should have taken into account the possibility it was wrong when assessing whether there was a real chance the appellant might be persecuted for a convention reason.

61    The IAA’s reasons, in particular at A[26]-[29], show that the IAA did not have any real doubt about its findings.

62    To the extent this ground refers to the “delegate”, any alleged error of the delegate was not judicially reviewable in the FCC and is not relevant on this appeal in relation to this ground. It was not shown to be relevant in a way which could affect the IAA’s decision.

63    It follows that this ground must fail.

Ground 7:

64    Ground 7 was:

7.    The Federal Circuit Court Judge Eagan [sic] failed to ensure that the hearing is fair. The duty requires that a litigant does not suffer a disadvantage from exercising his or her right to be self-represented (NSWCA in Hamad v New South Wales [2011] NSWCA 375).

Particulars

a)    The Federal Circuit Court Judge Eagan [sic] also failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court [SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445].

b)    It is a requirement in Shrestha v Migration Review Tribunal (2015) 229 FCR 301 that the Court must explain in plain terms to unrepresented applicants that they must identify why the Tribunal's decision was not made lawfully and by a fair process. It is not enough to merely say that they must demonstrate jurisdictional error.

65    The Full Court recently observed in BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [72]:

Courts have an overriding duty to ensure that a trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 at [16]. In circumstances where one party is unrepresented, the primary judge must take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court so that a fair trial is conducted: Hamod v New South Wales [2011] NSWCA 375 at [311]. See also the consideration of Hamod in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445.

66    No evidence was adduced on the appeal in respect of what occurred before the Federal Circuit Court and no transcript was available. There is nothing in the reasons for judgment or otherwise which suggest any unfairness. The appellant has not pointed to anything which might give rise to a conclusion that the trial was conducted otherwise than fairly.

67    It follows that this ground cannot succeed.

Conclusion

68    To the extent that leave is required to raise new grounds, leave is refused on the basis that the new grounds have insufficient merit to warrant a grant of leave. The appeal must be dismissed with costs.

Associate:

Dated:    28 February 2019